The High Court has granted a decree of divorce to a former couple who continue to live in the same house but have slept separately for nearly seven years.
Mr Justice John Jordan was satisfied it was correct and proper to grant the decree and other agreed orders even though the ex-partners propose continuing to both reside in the family home for several more years while their teenage children progress through education.
The Constitution and the Family Law (Divorce) Act of 1996, as amended, requires the court to be satisfied of various statutory proofs, including that there is no reasonable prospect of a reconciliation.
Section 5 of the 1996 Act states that spouses must have lived apart from each other for at least two years during the previous three.
Mr Justice Jordan said a couple can be considered as living apart while underneath the same roof provided they are not in an intimate and committed relationship.
“There is nothing in the legislation to support the view that parties seeking a decree of divorce must establish they will live in separate dwellings afterwards,” he added.
The judge accepted this pair have not been together as a couple for several years and have met the statutory proofs.
He was dealing with an appeal from the Circuit Court, which had refused to rule the ex-couple’s settlement and to make consent orders.
The woman has been diagnosed with a life-limiting cancer and wanted to put her affairs in order and safeguard the future of their children.
He approached the issue on the basis that the court has discretion, once the proofs are met, in considering whether to grant a decree. He said the question for him was whether there was any good reason to justify refusal.
The evidence is that the pair do not spend time together in the home, while one of them spends a lot of time away staying with friends, the judge said. The court heard they rarely talk, avoid using the kitchen at the same time and effectively lead entirely separate lives under one roof.
The judge said there “cannot be any doubt” but that the living arrangements are “difficult and stressful” for the man and woman and are due, at least partly, to the housing crisis and difficulties securing alternative, affordable accommodation.
The efforts being made by the former couple will probably preserve a level of stability for their children, he said. The features of their settlement are “understandable and worth supporting from a public policy point of view”.
Case law describes “spousal autonomy” as a “core constitutional value”, he added, and failing to respect the couple’s agreement and their right to determine their own living arrangements post-divorce would be “an affront to their constitutional protections and rights”.
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